al-Bashir Defies Warrant, Visits Chad. So What Now?

Posted on July 22, 2010 by Mark Kersten
al-Bashir arrest warrant chad

Sudan's President, al-Bashir, defied the arrest warrant against him to visit Chad, a member state of the ICC (Photo: BBC)

There has been some debate about whether Sudanese President, Omar al-Bashir, charged by the International Criminal Court (ICC) with war crimes, crimes against humanity and, more recently, genocide, would defy the warrant against him and visit a member-state of the ICC. Yesterday came the answer. Just days after the ICC’s Prosecutor and the President of Chad met, al-Bashir paid an official visit to Chad, a member-state of the ICC, which has the legal obligation under the ICC’s Rome Statute to arrest al-Bashir. They decided not to.

The question on everyone’s mind is why on earth would al-Bashir risk arrest by visiting a member-state? To date the Sudanese President has made a point of only visiting non-signatories of the Rome Statute.

Of course, Chad will have given Sudan as many assurances as it surely needed before the official visit. If there was any doubt, al-Bashir was even presented with a key to the Chadian capital, N’djamena.

It should also be noted that relations between Chad and Sudan are key to peace in Darfur. While the conflict in Darfur was initially painted as a black-and-white, Arab-African conflict, the true narrative is far more complex with dynamics played out on multiple levels. This includes the tenuous relationship between Chad and Sudan. The two neighbouring states have waged proxy wars in Darfur. It is increasingly apparent that any solutions to the conflict hoping to establish peace in Darfur will require a holistic approach and a wider understanding of all of the the underlying dynamics and causes of conflict, including Chad-Sudan relations.

map of Sudan and Chad

Chad borders Sudan to the West. They have waged proxy wars wars against each other in Darfur (Photo: Radio Netherlands Worldwide)

Back to al-Bashir’s visit, one of the primary arguments used by advocates of al-Bashir’s indictment, and issuing arrest warrants for state officials in general, has been that the warrants can act as a tool of isolation. Domestically and internationally, al-Bashir would be isolated through the shame and pressures of an arrest warrant. No one, the reasoning goes, wants to rub shoulders with an alleged international fugitive. As a result, the leader’s power can be undermined and challenged by internal actors who will want to establish peace, the leader will be thrown out of power and hopefully sent to the Court. Domestically, this relies on a tenuous assumption that any domestic opposition that overtakes the leader will necessarily want peace. But that’s another matter.

In the immediate wake of the indictment, there were,, at best mixed indications of al-Bashir’s marginalization. Some powerful domestic voices, notably Hassan al-Turabi, claimed that al-Bashir should surrender to the ICC. Domestic opposition parties, to the surprise of some observers, rallied in support of the President and rejected the ICC’s jurisdiction, calling the Court a tool of the imperial West. Internationally, members of the African Union and the Arab League publicly declared their support for al-Bashir and worked to lobby the United Nations to defer the indictment. The African Union recently reaffirmed their view that the indictment is untimely and counterproductive.

In the meantime, al-Bashir visited a number of states, none of which were members of the ICC. Indeed, it appeared that international marginalization was working.  In the past year, al-Bashir had missed some seven meetings due to be invited or uninvited.

Al-Bashir no doubt wants to fight not only against the ICC’s indictment, but international isolation. His visit to Chad will serve its political purposes. It is an act of defiance that the ICC’s detractors will no doubt trump up. There’s little doubt that realist scholars will use this event to suggest that states only really abide by international law when it’s in their interests. Many will wonder how seriously the Court can be taken when its member states refuse to comply by its Statute. This weight of this line of reasoning will, however, depend entirely on whether Chad’s act of defiance sets a precedence or is an isolated act.

My view is that this will be an isolated event. There are no doubt troubled waters between many African states and the International Criminal Court. Further, al-Bashir’s visit to Chad is no doubt a challenge to the Court, whether it is symptomatic of its relations with African states or not. It also poses interesting legal questions. In particular, what are the implications of being in breach of the Rome Statute? For now, the ICC has remained silent on the issue.

High Level Panel MbekiHowever, the cohesiveness of AU position should not be over-estimated. Indeed, it’s worthwhile remembering that the African Union has never come out and said that al-Bashir is innocent, but asserts that the warrant was issued at the wrong time. Sudan is at a critical juncture, with fragile Darfur peace negotiations and the critical implementation of the Comprehensive Peace Agreement between North and South Sudan.

The position of the AU may not be quite as uniform as official communiqués or declarations would suggest. Amongst AU member states there appears to be significant disagreement. A high-level panel headed by Thabo Mbeki came out with a position that implicitly supported the criminal action against al-Bashir. Further, some officials at the ICC have suggested that a number of African and Arab states agreed that al-Bashir should face justice but that they could not declare so publicly or officially. Some are more open with their support. South African President Jacob Zuma recently declared that should al-Bashir visit, he would be arrested. This suggests the existence of competing pressures to denounce the indictment rather than declaring support for an independent institution pursuing justice.

Of course, this is just one opinion. It is entirely possible that the fall-out from al-Bashir’s visit could be much more significant and detrimental. It is remarkable that just weeks ago, the New York Times published a piece titled ‘Wanted, Sudan’s President Can’t Escape Isolation’, arguing that isolation of al-Bashir has been increasingly effective. That within weeks of its publication, al-Bashir would visit a member-state of the ICC is indicative of the unpredictable nature of international criminal justice playing out in the field of international relations.

***********

Originally published at http://kerstenskolumn.wordpress.com/2010/07/22/al-bashir-defies-warrant-visits-chad-so-what/

Posted in Uncategorized | Leave a comment

First Individual Charged at ICC Ordered to be Released

Posted on July 15, 2010 by Mark Kersten
Thomas Lubanga trial

The International Criminal Court has ordered that the first man charged by the Court, Thomas Lubanga Dyilo, should be released without condition. This follows a decision last week to suspend his trial, the result of procedural irregularities – the prosecution refused to identify a key witness. Lubanga, a rebel leader of the Union of Congolese Patriots in the Ituri region of Congo, has been on trial for charges war crimes. Specifically, he is facing the charge of “conscripting and enlisting children under the age of fifteen years and using them to participate actively in hostilities”. He pleaded not guilty to the charges, maintaining that he was a politician not a warlord.

However, it is unlikely that Lubanga will actually be released in the coming days. British Judge Adrian Fulford declared that “This order shall not be enforced until the five day time limit for an appeal has expired…If an appeal is filed within the five day time limit against this order granting release, and if a request is made to suspend its effect, the accused shall not leave detention until the Appeals Chamber has resolved whether this order granting release is to be suspended.” In other words, the prosecution has 5 days to decide whether or not it will appeal the decision to release Lubanga.

This is not the first time controversy has afflicted Lubanga’s trial. Indeed, ICC expert and legal scholar, William Schabas, has describes this order to release Lubagan “a bit of déjà vu all over again.” In July 2008, prior to the beginning of his trial, judges ruled that Lubanga’s right to a fair trial had been breached and ordered his release. In reaction to prosecution’s refusal to disclose key evidence, the judges declared that “a fair trial of the accused is impossible, and the entire justification for his detention has been removed.” Following the Prosecution’s decision to make all of its evidence to the Court available, Lubanga remained at the ICC and his trial began in January 2009. The controversy, however, led to the delay of Lubanga’s trial by seven months.

Another controversy struck his trial when its first witness testified against Lubanga that he had been conscripted by Lubanga as a child soldier and fought in his rebel group subsequently retracted his testimony.

It will be interesting to see what observers and scholars, both political and legal, will have to say about these new developments. My initial reaction is somewhat mixed. Firstly and optimistically, the decision illustrates the effective working of procedural law at the ICC. I am not familiar with Lubanga’s case so I am in no position to say whether or not he is guilty of war crimes or not. However, this decision flies against popular assertions by the Court’s detractors that it’s a Western, imperial Court meting victor’s justice. The decision to uphold important procedural law at the Court by its judges in the favour of the alleged war criminal severely weakens  claims of victor’s justice.

ICC

Of course, the ideal situation would be to have a full and fair trial

establish Lubanga’s guilt or innocence. While this outcome seems  more difficult to achieve now, it’s important to note that it remains a possibility. There is little doubt that the prosecution will appeal the decision to set Lubanga free and they may be able to ensure the continuation of the trial, as they did in 2008. While it seems unlikely, another option may be for the prosecution to issue an expanded list of charges against Lubanga. Several human rights groups have previously voiced concern regarding the narrow scope of the charges against Lubanga.

Many people would feel unease if Lubanga was released unconditionally. Indeed, this presents an interesting political-legal dilemma. The possible political implications of Lubanga’s unconditional release, particularly on the conflict in Congo, are in tension will the need to maintain rigorous procedural standards.

Should he be released, it could very well lead to a significant backlash against the Court and more specifically the Office of the Prosecutor. This is only intensified by the fact that Lubanga was the symbolic first individual charged by the Court and its first defendant. A release would no doubt provide potent fodder for the Court’s detractors. Lorraine Smith of the International Bar Association at The Hague described the decision to suspend Lubanga’s trial “a PR nightmare.” Legal scholar Kevin Heller, at Opinio Juris, reacted to the procedural errors by the prosecution by declaring that “I think it’s time to remove [ICC Prosecutor] Moreno-Ocampo.”

Lastly, and most importantly, Lubanga’s unconditional release could also put civilians, victims and witnesses in danger. This is especially so if he were to return to the Congo and re-engage in the conflict there. This is a point that should not be forgotten as the legal and institutional implications of the Court’s decision are debated. Indeed, the most troublesome aspect of developments in the Lubanga case is that they may endanger victims.

Indeed, a lot is at stake. Not just for law, either.

*************

Originally posted at http://kerstenskolumn.wordpress.com/2010/07/15/first-individual-charged-at-icc-ordered-to-be-released/

Posted in Democratic Republic of Congo, International Criminal Court (ICC) | Leave a comment

Sudanese President Charged with Genocide: Some Initial Thoughts on Why it Matters

Posted on July 12, 2010 by Mark Kersten
Omar al-Bashir genocide

The decision by the ICC to add genocide to the charges facing Sudanese President al-Bashir is surely to be a politically controversial. Below are some initial thoughts on why the charges of genocide, acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”, is important.

In March 2009, al-Bashir was indicted by the ICC for war crimes and crimes against humanity in the conflict in Darfur. The ICC’s Prosecutor, Luis Moreno-Ocampo accused al-Bashir of creating camps with “genocide conditions, like a gigantic Auschwitz.” At the time of al-Bashir’s indictment, however, the ICC’s pre-trial chamber decided not to include charges of genocide against al-Bashir. Earlier this year, the Court’s Appeal’s Chamber ruled that the initial ruling by the pre-trial chamber had not appropriately adjudicated whether or not genocide charges should be levied against al-Bashir.

The judgement today declared it’s reasoning for the Court’s reversal on the genocide charges as follows:

The A Pre-Trial Chamber acts erroneously if it denies to issue a warrant of arrest under article 58 (1) of the Statute on the basis that “the existence of […] genocidal intent is only one of several reasonable conclusions available on the materials provided by the Prosecution”.

A spokesperson for the Court stated that “The judges of the court think that there are reasonable grounds to believe that al-Bashir is responsible for three counts of genocide committed against the Fur, Masalit, and Zaghawa ethnic groups.” Interestingly, the 3 counts of genocide added to al-Bashir’s warrant include one referring what essentially amounts to genocide by attrition. Eric Reeves has argued that “[w]hat Khartoum was unable to accomplish with the massive violence of 2003-04, entailing wholesale destruction of African villages, will be achieved through a ‘genocide by attrition.’ Civilians displaced into camps or surviving precariously in rural areas will face unprecedented shortfalls in humanitarian assistance, primarily food and potable water.” In line with this more expanded view of the crime of genocide, the ICC charged al-Bashir with”genocide by deliberately inflicting on each target group conditions of life calculated to bring about the group’s physical destruction.” I am no legal expert, but this is the first time that I have heard of legal charges of structural violence with amounting to an act of genocide. It could have significant implications on the future use of the term.

The baseline fact remains that whatever the legal status of the atrocities in Darfur, action must be taken to end the humanitarian catastrophe. Indeed, it seems morally dubious that a decision of whether or not genocide is occurring would decide whether or not effective action to stop mass suffering should be taken. However, the question of whether or not genocide has occurred remains important.

On one hand, the term genocide, the “crime of crimes”, has the ability to motivate public opinion and mobilize international consensus, although recent cases suggests this is often insufficient or simply too late. The widespread purchase of the term genocide may explain why so many advocacy and humanitarian groups choose to use the term rather liberally in order to drum up attention to and financial support for their work.

Further, genocide has the legal power to bind states to take action to halt genocide. However, here the record is also less than stellar. Although the US government holds the view that genocide has occurred in Darfur and that the Sudanese government was responsible, it has not taken any subsequent action that could legitimately be described as capable of stopping a genocide from continuing. This is in striking contrast to US reaction to the 1994 genocide in Rwanda, when the Clinton administration went to lengths to avoid the use of ‘genocide’ for fear they would be held legally bound to do something to stop it. It is a scary thought to think that a declaration of the existence of genocide is now deemed to have few significant consequences.

On the other hand, Rob Crilly, a journalist who has spent considerable time in Darfur and recently published Saving Darfur – Everyone’s Favourite African War, has written about the ability of Khartoum to manipulate false claims of genocide (and death tolls in Darfur) to illustrate Western bias and justify their own nonsensical figures. Further, Crilly writes that “[f]or all their hyperbole and visibility, the advocates…have merely succeeded in pushing Khartoum into a corner and reducing the possibility that diplomacy can prevail.” Rather than a genocide, Crilly, Alex de Waal, and others skeptical of genocide claims view Darfur not as a genocide but a low-intensity conflict.

Respected legal scholar and ICC expert William Schabas notes that “in a strictly legal sense, genocide has never before been so unimportant,” and “outside the strict confines of legal debate, the word ‘genocide’ remains desperately important.” Schabas has written extensively about his discomfort with what he sees as the abuse of the terminology of genocide, declaring that its expanded use and conflation with crimes against humanity has resulted in “careless and potentially misleading use of precise terminology”.

While Schabas’ articulate views are certainly worthy of consideration, there remain questions as to whether the expansion of the term genocide necessarily means the erosion of its effectiveness. The Genocide Convention (1948), as international political theorist Chris Brown argues, may be inherently backwards looking. It is a reaction and condemnation of the Holocaust. As such, it may not be able to capture or be an effective tool to prevent or stop contemporary genocide acts of today. The debate on the terminology of genocide is an important one that deserves greater public and scholarly attention.

The debate about whether or not genocide has or has not occurred in Darfur is nothing new. In 2005, the International Commission of Inquiry on Darfur, established by the UN, that Sudan had not pursued genocide. Almost simultaneously, and in contradiction to the Commission’s report, then US Secretary of State Colin Powell declared that genocide has been committed in Darfur and that the government of Sudan and the Janjaweed bear responsibility and genocide may still be occurring.” The debate has raged ever since.

Much attention will be brought on the implications of the decision to add genocide to Bashir’s arrest warrant. It is important to remember that observers against the ICC’s initial decision to indict al-Bashir, despite being unfairly vilified, were not against the ICC in principle but rather its timing.  There were legitimate concerns that the indictment would undermine peace negotiations, the precarious North-South peace held together by the 2005 Comprehensive Peace Agreement, and the humanitarian situation. While it may be too early to tell the effects of the ICC’s indictment of al-Bashir, 13 humanitarian aid organizations, responsible for about 50% of humanitarian aid in the region, were expelled. Many were subsequently allowed to return months later. However, the violence in Darfur did not escalate in the months following the indictments, peace negotiations continued with some modestly positive developments and the North-South peace agreement has held. Al-Bashir, however, has remained at large and further entrenched his stranglehold on power. He has travelled to a number of states, although notably not to any ICC state parties. He also recently handily won the first national election in Sudan in nearly two decades despite widespread criticism of voter irregularities. Al-Bashir has even mocked the indictment, saying that it has helped increase his popularity.

courtroom of the ICC

A view inside the International Criminal Court. Should al-Bashir ever be arrested, he will face charges of genocide in this setting (Photo: telegraph.co.uk)

There has yet to be a response to the added charges from the Sudanese government or Bashir himself, although the reaction will be predictable in its anti-Western, neo-colonial rhetoric. In the coming days the reaction of the African Union and the Arab League who have viewed the decision as potentially destabilizing peace negotiations and have been vehemently against the indictment in public will also be important. Further, how legal scholars react to the new charges will be interesting. One has already declared that while “the political merits are open to debate, this is clearly the correct legal decision.”

The addition of charges of genocide against al-Bashir will only make skeptics of the ICC’s role in Sudan more skeptical and its advocates and supporters more supportive. The government’s reaction will become clear in the upcoming days. As for the effect on al-Bashir himself, it’s unlikely the Court’s decision will add much to his international reputation. As a result of the various advocacy groups’ and the US government’s decision to declare that al-Bashir is responsible for genocide in Darfur, the stigma against him as a genocidal leader has long stood firm.

Once again, I am no legal expert, but perhaps some supporters and critics of the genocide charges against al-Bashir miss a fundamental point. Whether or not genocide has occurred in Darfur or not, are the chambers of the ICC not the ideal place in which to adjudicate on genocide charges and set a precedent on the future legal application of term? As the world’s first permanent international criminal court, one would certainly think so.

***********

Originally posted at http://kerstenskolumn.wordpress.com/2010/07/12/sudanese-president-charged-with-genocide-some-initial-thoughts-on-why-it-matters/

Posted in Darfur, Genocide, Human Rights, International Criminal Court (ICC), Peace Negotiations, Sudan | Leave a comment

International Criminal Justice gets ‘Sexy’ – A Supermodel/Diva at a War Crimes Trial

Posted on July 11, 2010 by Mark Kersten
Noami Campbell Special Court for Sierra Leone

Naomi Campbell will appear to testify at the Special Court for Sierra Leone (Photo: Jesse Gross)

International criminal justice just got a bit ‘sexier’. British supermodel Naomi Campbell has agreed to testify at the trial of Charles Taylor, former President of Liberia, who is on trial in Sierra Leone for war crimes and crimes against humanity.

A few weeks ago, actress Mia Farrow, who now spends much of her time advocating for action in Darfur, declared that Campbell had told her an “unforgettable story”. According to Farrow, during a charity dinner in South Africa, hosted by Nelson Mandela in 1997, Taylor gave Campbell a ‘blood diamond’.

Some might wonder why it matters that Campbell testify at the Special Court for Sierra Leone (SCSL) – how much could a dinnertime gift of a diamond prove about the allegations against Taylor?

There appear to be two likely reasons for the Court’s decision to demand Campbell’s testimony – one legal and the other not so much.

Prosecutors at the SCSL have been attempting to prove a direct link between and Charles and the use of so-called ‘blood diamonds‘, diamonds mined in war zones and used to fuel conflict. Taylor himself has steadfastly denied owning or trading blood diamonds. If it can be established, with the testimony of Campbell, her former agent and Farrow, that Taylor in fact had blood diamonds at his disposal, his case would be vastly undermined.

The second possible reason for her summoning is that Campbell can bring the Court, and the case of Taylor, a higher profile. As law professor Julian Ku writes, the Court’s demand to bring Campbell to testify at Taylor’s trial “sounds like a bit of a publicity stunt by prosecutors at the Special Tribunal for Sierra Leone, but it could very well work…I just don’t see how her testimony could be very important unless he told her about the source of the diamond.”

Campbell’s dramatic, and unnecessarily violent, response (see below) to questions about her relationship, her comments on Oprah regarding her initial refusal to testify, and the subsequent summoning by the Court have brought some spotlight on a Court which struggles to maintain an international profile and works on the basis of a shoe-string budget. I recently had the opportunity to attend some of Taylor’s trial and spoke with one of its officials, who noted that the Court is in a constant struggle to retain sufficient funding to run the trial.

Campbell’s less than classy reaction to questions about receiving a ‘blood diamond’ from Charles Taylor in 1997:

At the Court itself, the prosecution and defense will likely be divided along the reasoning above. Taylor’s defense will surely see this as a desperate ploy to gain international attention. Indeed, the defense team has declared that “Naomi Campbell’s only utility would be to bring unwarranted media attention to the proceedings, it cannot be said that her testimony is necessary to try the case fairly.” Notably, the defense is also vehemently against bringing in more witnesses given that the prosecution closed its case in February 2009. The prosecution, on the other hand, will hold steadfast in its belief that Campbell’s testimony is vital in establishing Taylor’s use of blood diamonds. The reality is surely a bit of both.

Charles Taylor at the Special Court for Sierra LeoneCampbell certainly isn’t sensitive to the issues at hand. On the widely watched Oprah she declared that “I don’t want to be involved in this man’s case—he has done some terrible things and I don’t want to put my family in danger.” This was a remarkably ignorant and selfish comment. Campbell is an independently wealthy woman and a citizen of Britain who can afford protection. After testifying she can return to her lavish lifestyle. Yet witnesses at the Court, many of whom are victims or survivors of the conflict in Sierra Leone, don’t have such benefits. Indeed, many feel unable to attend the Court out of fear of repercussions, while others testify on the condition that their identity to be concealed.

It will be interesting to see what sort of attention Campbell receives at the trial. For the Court’s prosecution, it seems like a win-win. The media attention has been widespread and is unlikely to stop any time soon. There likely won’t be an empty seat in the fishbowl of a courtroom when Campbell testifies. Further, the three witnesses are likely to bolster the prosecution’s case against Taylor. As for Campbell, many eyes will be looking for signs of misbehaviour. This time, however, she won’t be able to punch her questioner.

Posted in Sierra Leone, Special Court for SIerra Leone (SCSL) | Leave a comment

Saying We’re Sorry: Historical Justice, Katyn, Canada and Rwanda

Posted on April 18, 2010 by Mark Kersten
Statue of Reconciliation, Stormont

Statue of Reconciliation, Stormont Ireland (Photo: DennisDeery)

Overcoming the injustices of the past does not come easy. In Canada, Australia, New Zealand, and elsewhere, Aboriginal peoples have sought a sense of justice with greater political representation and protection of their traditions after colonial brutality. With the support of many western states, Armenians have long attempted to officially establish that Turkey perpetrated genocide against the Armenian people in the early 20th century. In Cambodia there have been attempts to better understand the horrors of the Khmer Rouge rule and bring those most responsible for atrocities to justice.

Seeking reconciliation over past injustices is an arduous process. Many of those most directly affected by past atrocity and brutality don’t live to see the day when some form of justice is served. It took many years over wrangling and arguing with the international community for Cambodia to establish a Court to try senior officials of the Khmer Rouge and, given the government’s reluctance to wholly embrace international human rights standards, it is still uncertain what capacity of reconciliation will be possible there. In Canada, despite what is generally recognized as a earnest and impressive apology by the government of Canada in combination with significant reparations, many natives, especially those who choose to continue in live in traditional communities, have markedly worse conditions than the average Canadian citizen. Social difficulties, including alcoholism, suicide and drug use, remain well above average. Turkey continues to refute any claims that it committed genocide in Armenia, going so far as to pass legislation that prohibits the insulting of “Turkishness”, which many view as an attempt to silence internal critics supportive of Armenian claims.

Most states in Eastern and Central Europe have had a tremendously difficult experience in reconciling the events of the 20th century.  Former communist European states, for example, have had highly-charged, emotional debates over how to make available files from domestic intelligence agencies. On the one hand there are those who believe that justice can only be served if the whole truth is established and it is irrelevant if this pits family, friends and neighbours against each other. Others suggest that the informant files cannot possibly tell the whole truth. They argue that, for example, files may not indicate whether a given informant supplied information as a result of duress or threat rather than voluntarily or in seeking some reward. It is a passionate debate that in many cases remains unresolved leaving some unsatisfied in their thirst for historical justice.

Poland is no exception and an especially interesting case in that much of its contemporary history has been sharply influenced by attempts to reconcile and establish the truth regarding a particular instance of historical injustice: the Katyn massacres. In 1940 over 20,000 Polish soldiers, police officers, intellectuals, and professors were murdered, primarily in the Forest of Katyn. That includes my own great grandfather. In 1943, the Nazis found the mass graves in Katyn. However, while it was evident that the crimes had been committed by Soviet forces, a politically-inspired campaign of denial was instituted. Allied states, for whom the USSR was a key ally in the war, were not willing to publicly apportion blame on the Soviets despite having sufficient intelligence to know that it had been a Soviet-conducted massacre. The USSR denied any responsibility maintaining that it was the Nazis who had conducted the massacre.

Polish prisoners of war

Polish Prisoners of War, captured by the Soviets in 1939. At Katyn over 20,000 Poles were killed including officers, political officials, and academics

During the Cold War, the truth of the events at Katyn and elsewhere were buried but never far from the national imagination of the Polish people. Seeking truth about, and justice for, the massacres was a powerful point of national grievance in resistance movements and attempts to overthrow communist rule. Pressure for an admission of culpability grew with Gorbachev’s policy of Glasnost, or “openness” in the 1980s. In 1990, fifty years after the massacres, Gorbachev admitted that the Soviet Union had ordered and perpetrated the massacre.

Katyn has long influenced Polish-Russian relations, both during the Cold War and since. Given the recent death of the Polish President and host of military, cultural and academic leaders on their way to a commemoration of the 70th anniversary of Katyn, it isn’t likely to be far from the hearts and minds of Poles any time soon. It was an important step towards reconciliation when both Russian and Polish Prime Ministers were present at an earlier commemoration ceremony. In a bitter sense of irony, the tragic death of a similar cross-section of Polish society last week as was killed in Katyn may serve to bring justice for what happened to Poles even closer to reality.

The question remains, however, if reconciliation can be possible without an apology from those responsible. Russian PM Vladimir Putin stopped short of apologizing for what occurred in Kaytn, something that many Poles have long hoped for. Putin also maintained he would not open additional archives or provide the names of perpetrators, read by many as an impediment to the establishment of truth.

Willy Brandt kneeling

Perhaps one of the most powerful acts of repentence came when Willy Brandt, German Chancellor, spontaneously knelt in front of a monument to Jewish Victims in the Warsaw Ghetto

While it has become common place for leaders to acknowledge past wrongs, with some notable exceptions, there is often no actual apology. The words “We are sorry” are not declared. Instead, there tends a statement to the effect that “We regret what happened.”

Earlier this week, Canadian Governor General Michaelle Jean, traveled to Rwanda, the scene of a genocide in 1994 which claimed the lives of an estimated 800,000 Tutsis and moderate Hutus. where she declared that: “The world’s failure to respond adequately to the genocide is a failure in which Canada – as part of the international community – readily acknowledges its fair share of responsibility.” On the face of it, many would accept that her words were part of an apology, and indeed, it was initially perceived as such. Very quickly, however, the Prime Minster’s Office clarified that it was not an apology but an “acknowledgement”. French President Nicholas Sarkozy, when visiting Rwanda, also acknowledged “mistakes” by the international community but did not apologize.

Rwanda skulls

The skulls of victims of the Rwandan Genocide which claimed an estimated 800,000 people in 1994. Many international political leaders have expressed "regret" or "acknowledged" the atrocity but not apologized. (Photo: The Dilly Lama)

So, why not simply apology for past wrongs? For some, it is theoretically dubious for an individual, in this case a political leader, to apologize for something that he/or she did not commit to a population which did not directly experience the injustice. Others, with an ethical persuasion, claim that apologizing for injustices of the past universalizes morality trans-historically and question whether this is appropriate. More practical views suggest that leaders are wary that an apology is an admission of guilt which can be used to make the state legally liable for past wrongs.

Of course, it is questionable whether the above views matter much when societies continue to harbour resentment and are incapable of some closure as time passes. Taking the Polish example, again, Katyn does not simply affect Poles’ view of the past but also the future. Without reconciliation and the establishment of truth, many find it difficult to see how the memory of Katyn will not continue to affect Polish politics, and perhaps not always in a constructive manner or in Poland’s own interest.

Historical justice is a difficult beast to contend with. It is laced with emotion and expectation. It includes a view to past pain and shapes the expression of future possibility. In the end, whether or not historical justice can be served, may depend on leaders’ willingness to say: “We are sorry.”

*******************

Originally published at http://kerstenskolumn.wordpress.com/2010/04/23/saying-were-sorry-historical-justice-katyn-canada-and-rwanda/

Posted in Apologies, Armenia, Cambodia, Canada, Europe, Historical Justice, Poland, Turkey | 3 Comments